dismissed H-1B Case: Information Technology

(b)(6)
DATE: MAY 2 6 2015 
IN RE: Petitioner: 
Beneficiary: 
PETITION RECEIPT #: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
on Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
On the Petition for a Nonimmigrant Worker (Form 1-129), the petitioner describes itself as a 
180-employee "Information systems11 company, established in In order to employ the 
beneficiary in a position it designates an "Associate Consultant-JAVA Developer" position, the 
petitioner seeks to classify him as a nonimmigrant worker in a specialty occupation pursuant to 
section 101(a)(15 )(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1101( a)(15 )(H)(i)(b ). 
The Director denied the petition determining that the petitioner had not provided evidence sufficient 
to establish that the proffered position is a specialty occupation. 
The record of proceeding before this office includes the following: (1) the Form I-129 and 
supporting docume ntation; (2) the Director's request for evidence (RFE); (3) the petitioner's 
response to the RFE; (4) the notice of decision; and (5) the Form I-290B, Notice of Appeal or 
Motion, and the petitioner's brief in support of the appeal. 
Upon review of the entire record of proceeding, we find that the petitioner has not overcome the 
Director's grounds for denying this petition. Accordingly, the appeal will be dismissed and the petition 
will remain denied. 
I. STATUTORY AND RE GULATORY FRAMEWORK 
The issue in this matter is whether the proffered position qualifies as a specialty occupation. To 
meet its bur den of proof in this regard, the petitioner must establish that the employment it is 
offering to the bene ficiary meets the following statutory and regulatory requirements. 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation11 as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.P.R. § 214.2(h)(4)(ii) states, in pertinent part, the following: 
Specialty occupa tion means an occupation which [(1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
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specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, 
as a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.P.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position 
must also meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.P.R. § 214.2(h)( 4)(iii)(A) must logically be read together 
with section 214(i)(1) of the Act and 8 C.P.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. See K Mart Corp. v. Car tier, Inc., 486 U.S. 281, 291 (1 988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also 
COlT Independence Joint Venture v. Federal Sav. and Loan Ins. Corp. , 489 U.S. 561 (1989); 
Matter of W-F-, 21 I&N Dec. 503 (BIA 19 96). As such, the criteria stated in 8 C.P.R. 
§ 214.2(h)( 4)(iii)(A) should logically be read as being necessary but not necessarily sufficient to 
meet the statutory and regulatory definition of specialty occupation. To othef\Vise interpret this 
section as stating the necessary and sufficient conditions for meeting the definition of specialty 
occupation would result in particular positions meeting a condition under 8 C.P.R. 
§ 214.2(h)(4)(iii)(A) but not the statutory or regulatory definition. See Defensor v. Meissner, 20 1 
F.3d 384, 387 (5th Cir. 2000). To avoid this result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be 
read as providing supplemental criteria that must be met in accordance with, and not as alternatives 
to, the statutory and regulatory definitions of specialty occupation. 
As such and consonant with section 214(i)(1) of the Act and the regulation at 8 C.P.R. 
§ 214.2(h)( 4)(ii), U.S. Citizen ship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.P.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proffered position. See 
Royal Siam Corp. v. Chertoff, 484 P.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement 
in a specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). Applying this standard, USCIS regularly approves H-1B petitions for qualified aliens 
(b)(6)
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Page 4 
who are to be employed as engineers, computer scientists, certified public accountants, college 
professors, and other such occupations. These professions, for which petitioners have regularly 
been able to establish a minimum entry requirement in the United States of a baccalaureate or 
higher degree in a specific specialty or its equivalent directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H-lB visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position nor an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry 
into the occupation, as required by the Act. 
II. FACTS AND PROCEDURAL HISTORY 
The petitioner identified the proffered position as an "Associate Consultant-JAVA Developer" on 
the Form I-129, and attested on the required Labor Condition Application (LCA) that the 
occupational classification for the position is "Computer Support Specialists," SOC (ONET/O ES) 
Code 15 -1150, at a Level II (qualified) wage.1 The LCA was certified on March 4, 20 14, for a 
validity period from August 28, 20 14 to August 27, 20 17. 
In the petitioner's letter in support of the petition, dated March 6, 20 14, the petitioner stated that it 
"was founded in in response to a growing demand for information technology consulting and 
project management services." The petitioner provided an overview of several programming 
languages and a programming platform, and indicated that the beneficiary would be employed as an 
"associate consultant-JAVA Developer." Regarding the beneficiary's duties, the petitioner stated: 
His duties will include test driven development performing Object Oriented 
programming and design with a managed programming language (C# or Java), as 
1 We observe here that the petitioner attests on the LCA that it used the OFLC Online Data Center, published 
in 2014, as its source to obtain the appropriate prevailing wage. However, SOC (ONET/OES) Code 
15-1150, "Computer Support Specialists," does not appear in the OFLC Online Data Center, All Industries 
Database, for the time period in which the LCA was submitted, July 2013 to June 2014. The SOC code that 
appears to most closely correspond to the occupation "Computer Support Specialists" for the time period July 
2013 to June 2014 is SOC (ONET/OES) Code 15-1151, "Computer User Support Specialists." 
http://www.flcdatacenter.com/OesQuickResults.aspx?code=15-1151&area=18140&year=14&source=1 (last 
visited May 8, 2015). The Level I and Level II prevailing wages for SOC (ONET/OES) Code 15-1151, 
"Computer User Support Specialists," are $32,074 and $40,622, respectively. As will be discussed in detail 
below, the petitioner has not submitted a certified LCA that corresponds to the instant petition. 
(b)(6)
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well as any structured Query Language (Oracle, MSSQL, mysql, postgres, etc.). He 
will also perform web programming (HTIP request/response lifecycle) using 
Hypertext Markup Language (HTML) and JavaScript, along with Cascading 
Stylesheets (CSS). 
The petitioner stated that the m1mmum academic requirement for the proffered position is a 
"bachelor's degree in computer science, information technology or related field." The petitioner 
enclosed the beneficiary's diploma and transcripts from _ in 1 , Ohio 
showing the beneficiary was awarded a "Bachelor of Science" degree in December 2012 .2 The 
petitioner asserted that a "bachelor's degree is normally the minimum requirement for entry into the 
particular position and we would normally require such a degree for this position." 
Upon review of the initial record, the Director requested additional evidence to establish that the 
proffered position qualifies for classification as a specialty occupation. The Director outlined the 
specific evidence that could be submitted. In response to the Director's RFE, the petitioner repeated 
the initial description and supplemented the description as follows: 
• Determine operational objectives by studying business functions, gathering 
information, evaluating output requirements and formats; 
• Design computer programs by analyzing requirements , constructing workflow 
charts and diagrams, studying system capabilities, writing specifications; 
• Improve systems by studying current practices and designing modifications; 
• Primarily work with Object Oriented programming and design with a managed 
programming language (C# or Java), as well as any structured Query Language 
(Oracle, MSSQL, mysql, postgres, etc.). 
• Perform web programming (HTTP request/response lifecycle) using Hypertext 
Markup Language (HTML) and JavaScript, along with Cascading Stylesheets 
(CSS). 
The petitioner identified the particular project to which the beneficiary would be assigned, noted the 
difficulty of assigning time percentages to different elements, and provided an estimate of the 
beneficiary's time spent on various functions. The petitioner indicated that its "mission is heavily 
dependent upon highly educated and expert information systems associates" and reiterated that they 
"all have at a minimum a bachelor's degree in computer science or a related field." The petitioner 
noted that at the beneficiary's "level of responsibility" he "will use independent judgment and 
problem solving in his work." 
The record in response to the Director's RFE also included: the petitioner's corporate documents, 
brochures, and press releases; photographs of the petitioner's location; the petitioner's corporate 
2 The petitioner asserted that the beneficiary's bachelor's degree is in the fields of information technology and 
web development; however, the diploma submitted does not identify a p articular area of concentration. 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
structure, career path, and partial organizational chart; a contract and related documents between the 
petitioner and the State of Ohio; and the employment agreement between the beneficiary and the 
. . 3 petitioner. 
Upon review of the record, the Director denied the petition. The Director determined that the 
petitioner had not established that the proffered position is a specialty occupation. 
On appeal, the petitioner asserts that the prevailing wage occupational classification on the LCA has 
no bearing on whether the job set forth on the Form I-129 is a specialty occupation. The petitioner 
also contends that the proffered position of Associate Consultant-Java Developer is a "Software 
Developer, Applications." The petitioner references the Department of Labor's (DOL) 
Occupa tional Outlook Handbook (Handbook) chapters on "Software Developers," "Computer 
Programmers," Computer Systems Analysts," and "Database Administrators" to demonstrate that 
the entry-level education for these workers is a bachelor's degree. The petitioner also references the 
Occupational Information Network's (O*NET) report on "'software developers, applications' at 
15 -1132, 'computer programmers' at 15 -1021, 'computer systems analysts' at 15 -10 51 .00 and 
'software engineers' at 15 -10 31," and notes that under "E ducation," O*NET indicates that most of 
these occupations require a four-year bachelor's degree. 
The petitioner further asserts that a '"degree in a specific specialty' has been ruled unlawful by the 
U.S. Federal District Court that has jurisdiction over this employer." The petitioner cites 
Residential Fin. Corp. v. U.S. Citizenship & Immigration Services, 839 F. Supp. 2d 985 (S.D. Ohio 
2012), in support of this assertion. The petitioner notes that the beneficiary's curriculum and degree 
clearly shows a specialized course of study for the position. The petitioner avers additionally, that it 
normally requires a degree for the position and that the nature of the specific duties are so 
specialized and complex that knowledge required to perform the duties is usually associated with 
the attainment of a bachelor's degree in a related field. The petitioner concludes that it has 
established by a preponderance of the evidence that the proffered position is a specialty occupation 
and that eligibility for the H-1B classification has been established. 
III. STANDARD OF PROOF 
In light of the petitioner's references to the requirement that USCIS apply the "preponderance of the 
evidence" standard, we affirm that, in the exercise of our appellate review in this matter, as in all 
3 The employment agreement between the petitioner and the beneficiary is dated February 27, 2013 and 
offers the beneficiary a salary of $37,000 per year. We observe that the petitioner indicated on the Form 
1-129, that the beneficiary's annual salary will be $47,000. However, the petitioner has not addressed this 
salary discrepancy. It is incumbent upon the petitioner to resolve any inconsistencies in the record by 
independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice 
unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 
I&N Dec. 582, 591-92 (BIA 1988). 
(b)(6)
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matters that come within our purview, we follow the preponderance of the evidence standard as 
specified in the controlling precedent decision, Matter of Cha wathe, 25 I&N Dec. 369, 375-376 
(AAO 20 10). In pertinent part, that decision states the following: 
!d. 
Except where a different standard is specified by law, a petitioner or applicant in 
administrative immigration proceedings must prove by a preponderance of evidence 
that he or she is eligible for the benefit sought. 
* -.!- * 
The "preponderance of the evidence" of "truth" is made based on the factual 
circumstances of each individual case. 
* * * 
Thus, in adjudicating the application pursuant to the preponderance of the evidence 
standard, the director must examine each piece of evidence for relevance, probative 
value, and credibility, both individually and within the context of the totality of the 
evidence, to determine whether the fact to be proven is probably true. 
Even if the director has some doubt as to the truth, if the petitioner submits relevant, 
probative, and credible evidence that leads the director to believe that the claim is 
"more likely than not" or "probably" true, the applicant or petitioner has satisfied the 
standard of proof. See INS v. Card oza-Foncesca, 480 U.S. 421, 431 (1987) 
(discussing "more likely than not" as a greater than 50% chance of an occurrence 
taking place). If the director can articulate a material doubt, it is appropriate for the 
director to either request additional evidence or, if that doubt leads the director to 
believe that the claim is probably not true, deny the application or petition. 
We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
200 4). In doing so, we apply the preponderance of the evidence standard as outlined in Matter of 
Chawathe. Upon our review of the present matter pursua nt to that standard, however, we find that 
the evidence in the record of proceeding does not support the petitioner's contentions that the 
evidence of record requires that the petition at issue be approved. Applying the preponderance of 
the evidence standard as stated in Matter of Chawathe, we find that the Director's determinations in 
this matter were correct . Upon our review of the entire record of proceeding, and with close 
attention and due regard to all of the evidence, separately and in the aggregate, submitted in support 
of this petition, we find that the petitioner has not established that its claims are "more likely than 
not" or "probably" true. As the evidentiary analysis of this decision will reflect, the petitioner has 
not submitted relevant, probative, and credible evidence that leads us to believe that the petitioner's 
claims are "more likely than not" or "probably" true. 
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IV. MATERIALFINDINGS 
NON-PRECEDENT DECISION 
A. The LCA Does Not Correspond to the Petition 
As a matter critically important in its determination of the merits of this appeal, we find that there 
are significant discrepancies in the record of proceeding with regard to the petitioner's occupational 
classification of the proffered position and the duties and responsibilities of the proffered position. 
Based upon a complete review of the record of proceeding, we find that the petitioner has not 
provided sufficient consistent and credible information to establish that the proffered position is a 
specialty occupation. 
First, the LCA serves as the critical mechanism for enforcing section 212(n)(1) of the Act, 8 U.S.C. 
§ 1182(n)(l) . See 65 Fed. Reg. 80 110, 80 110-8 01 11 (indicating that the wage protections in the 
Act seek "to protect U.S . workers' wages and eliminate any economic incentive or advantage in 
hiring temporary foreign workers" and that this "process of protecting U.S. workers begins with [the 
filing of an LCA] with [DOL]."). According to section 212(n)(l)(A) of the Act, an employer must 
attest that it will pay a holder of an H-lB visa the higher of the prevailing wage in the "area of 
employment" or the amount paid to other employees with similar experience and qualifications who 
are performing the same services. See 20 e.F.R. § 655 .731(a); Venkatraman v. REI Sys., Inc., 417 
F.3d 418, 422 & n.3 (4th eir. 2005); Patel v. Boghra, 369 Fed.Appx. 722, 723 (7th eir. 2010); 
Michal Vojtisek-Lom & Adm'r Wage & Hour Div. v. Clean Air Tech. Int'l, Inc., No. 07-97, 2009 
WL 2371236, at *8 (Dep't of Labor Admin. Rev. Bd. July 30, 2009). 
Accordingly, under the H-1B program, a petitioner must offer a beneficiary wages that are at least 
the actual wage level paid by the petitioner to all other individuals with similar experience and 
qualifications for the specific employment in question, or the prevailing wage level for the 
occupational classification in the area of employment, whichever is greater, based on the best 
information available as of the time of filing the application. See section 212(n)(l)(A) of the Act, 
8 U.S.e. § 1182(n)(1)(A). 
Thus, contrary to the petitioner's assertion, USers is required to analyze the certified LCA to 
determine whether the certified LCA corresponds to and supports the H-1B petition filed on behalf 
of the beneficiary. That is, the regulation at 20 C.F.R. § 655 .705 (b) requires that USers ensure that 
an LCA actually supports the H-lB petition filed on behalf of the beneficiary. While DOL is the 
agency that certifies LeA applications before they are submitted to users, DOL regulations note 
that the Department of Homeland Security (DHS) (i.e., its immigration benefits branch, USeiS), is 
the department responsible for determining whether the content of an LeA filed for a particular 
Form I-129 actually supports that petition. See 20 e. F.R. § 655.7 05 (b), which states, in pertinent 
part (emphasis added): 
For H-lB visas ... DHS accepts the employer's petition (DHS Form I-129) with the 
DOL certified LeA attached. In doing so, the DHS determ ines whether the petition 
is supported by an LCA which corresponds with the petition, whether the occupation 
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NON-PRECEDENT DECISION 
named in the [LCA] is a specialty occupation ... and whether the qualifications of 
the nonimmigrant meet the statutory requirements of H-1B visa classification. 
With respect to the LCA, DOL provides clear guidance for selecting the most relevant O"'NET 
occupational code classification. 4 The "Prevailing Wage Determination Policy Guidance " states the 
following: 
In determining the nature of the job offer, the first order is to review the 
requirements of the employer's job offer and determine the appropriate occupational 
classification. The O*NET description that corresponds to the employer's job offer 
shall be used to identify the appropriate occupational classification . . . . If the 
employer's job opportunity has worker requirements described in a combination of 
O*NET occupations, the SWA should default directly to the relevant O*NET -SOC 
occupational code for the highest paying occupation. For example, if the employer's 
job offer is for an engineer-pilot, the SWA shall use the education, skill and 
experience levels for the higher paying occupation when making the wage level 
determination. 
The instructions that accompany the LCA indicate that, when completing Section D, "P eriod of 
Employment and Occupation Information," the employer should enter the occupational code that 
most clearly describes the occupation "to be performed." Based on the petitioner's characterization 
of the proffered position, the LCA should, therefore, list the occupational code for Software 
Developers, Applications, the employment field that the petitioner claims is reflected in the duties 
of the proffered position. 
The LCA was submitted to the DOL on February 26, 2014 and certified on March 4, 2014 for the 
occupational classification of "Computer Support Specialists," SOC (ONET/O ES) Code 15-1 150 , at 
a Level II (qualified) wage.5 The OFLC Online Data Center, All Industries Database, for July 20 13 
to June 2014, the pertinent time period, no longer uses SOC Code 15-11 50. As noted above, OFLC 
Online Data Center uses SOC Code 15-1 151, to identify "Computer User Support Specialists."6 
More importantly, the OFLC Online Data Center indicates the prev ailing wage for this occupational 
classification, in the , OH metropolitan statistical area (MSA) at a Level II wage as 
4 U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, 
Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www .foreignlaborcert.doleta.gov /pdf/NPWHC _Guidance_ Revised _11_ 2009 .pdf. 
5 The Labor Certification Registry website is accessible on the Internet at https://icert.doleta.gov (last visited 
May 8, 2015). 
6 The Foreign Labor Certification Data Center is the location of the Office of Foreign Labor Certification 
(OFLC) Online Wage Library for prevailing wage determinations. See http://www.flcdatacenter.com/ (last 
visited May 8, 2015). 
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$40,622. 7 If the position proffered here is actually a computer support specialist or a computer user 
support specialist, the wage offered on the Form 1-129 would comply with DOL regulations. 
However. the oetitioner's proffered wage of $47,000 does not comply with the prevailing wage in 
the OH MSA for a position that encompasses the duties of a "Software Developer, 
Applications" position. On appeal, the petitioner claims that the position proffered here is actually a 
software developer, applications (SOC Code 15-1 132); however, the prevailing wage for such an 
occupation at a Level II (qu alified) wage, in the , OH MSA is $71,302, a wage 
significantly higher than that proffered by the petitioner. 8 The attested salary of $4 7,000 per year 
on the Form I-129 falls well below that required by law for the position of software developer, 
applications. 
We again note that the employment agreement between the petitioner and the beneficiary offers the 
beneficiary a salary of $37,000 per year whereas the pe titioner indicated on the Form I- 129, that the 
beneficiary 's annual salary will be $47,000. The petitioner has not addressed this salary 
discrepancy. It is incumbent upon the petitioner to resolve any inconsistencies in the record by 
independent objective evidence. Any attempt to explain or reconcile such inconsi stencies will not 
suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. 
Matter of Ho, 19 I&N Dec. 58 2, 59 1-92 (BIA 1988). 
As observed above, even if the petitioner believed its position was described as a combination of 
O*NET occupations, it should have chosen the relevant occupational code for the highest paying 
occupation, again in this case "Software Developer, Applications." 9 However, the petitioner chose 
the occupational category "Computer Support Specialists" for the proffered position which involves 
technical assistance, support, and advice, not designing, developing, and deploying software 
applications and systems. 10 The fact that the LCA so clearly lists the wrong occupational code and 
7 For more information regarding the wages for "Computer User Support Specialists" - SOC (ONET/OES 
Code) 15-1151, in OH MSA, for the 
http://www.flcdatacenter.com/OesQuickResults.aspx?code= 
visited May 8, 2015). 
period 
�area= 
7/2013 6/ 2014, see 
1&year=14&source=1 (last 
8 
Even if the petitioner had certified the LCA for a Level I (entry) wage, for a "Software Developer, 
Applications" position in OH MSA, for the period 7/2013 - 6/2014, the prevailing wage would be 
$60,008. See http://www .flcdatacenter .com/OesQuickResults .aspx?code= 
&area= &year= 14&source=l (last visited May 8, 2015). 
9 Here the petitioner references a number of occupations that require a bachelor's degree according to its 
interpretation of the chapters in the Handbook and O*NET's report on software develo pers, computer 
programmers, computer systems analysts, database administrators, and software engineers. The petitioner 
does not appear to claim that the proffered position encompasses the duties of these occupations, other than 
the occupation of a software developer or a software deve loper, applications. 
1° For a complete discussion of the duties of a "Compu ter Support Specialist," see U.S. Dep't of Labor, 
Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-2015 ed., "Computer Support 
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Page 11 
the wrong prevailing wage undermines the credibility of the petition. Had the petitioner provided 
the occupational code and prevailing wage for software developers, applications, to the DOL, it 
would have been required to pay a much higher wage to the beneficiary. However, the petitioner 
provided the wrong occupational code and prevailing wage on the LCA and was able to obtain an 
LCA certified for a different occupation at a much lower rate of pay, then turn to US CIS and claim 
that the position is for a software developer, applications, in an attempt to qualify the proffered 
position as a specialty occupation. 
To permit the petitioner to engage in this pretense would result in a petitioner paying a wage lower 
than that required by section 212(n)(l)(A) of the Act, 8 U.S.C. § 1182(n)(l)(A), by allowing that 
petitioner to simply submit an LCA for a different occupation and at a lower prevailing wage than 
the one being petitioned for. Here, the petitioner has not submitted a valid LCA that has been 
certified for the proper occupational classification, and the petition must be denied for this reason. 
B. Requirement of a Bachelor's Degree in a Specific Specialty 
The petitioner interprets the Handbook's report on the "Software Developer" position to require a 
bachelor's degree for the occupation demonstrating that this is the typical level of education that 
most workers need to enter this occupation. 11 We have consistently determined that in accordance 
with the statutory requirements, a petitioner must demonstrate that the proffered position requires a 
precise and specific course of study that relates directly and closely to the position in 
question. There must be a close correlation between the required specialized studies and the 
position; thus, the mere requirement of a degree, without further specification, does not establish the 
position as a specialty occupation. Cf Matter of Michael Hertz Associates, 19 I&N Dec. 
558 (Comm'r 19 88) ("The mere requirement of a college degree for the sake of general education, 
or to obtain what an employer perceives to be a higher caliber employee, also does not establish 
eligibility."). Thus, while a general-purpose bachelor's degree may be a legitimate prerequisite for a 
particular position, requiring such a degree, without more, will not justify a finding that a particular 
position qualifies for classification as a specialty occupation. See Royal Siam Corp. v. Ch ertoff, 
484 F.3d at 14 7 (1st Cir. 2007 ). 
We have also reviewed the petitioner's citation to Residential Fin. Corp. v. U.S. Citizenship 
& Imm igration Services, for the proposition that "'[t]he knowledge and not the title of the degree is 
what is important. Diplomas rarely come bearing occupation-specific majors. What is requ ired is 
. Specialists," http://www. bls.gov /ooh/computer-and-information-technology /computer -support-
specialists.htm#tab-1. For a complete discussion of the duties of a "Software Developer," see U.S. Dep't of 
Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-2015 ed., "Software Developers," 
http://www.bls. gov/ooh/computer-and-information-technology/software-developers.htm#tab-2 (last visited 
May 8, 2015). 
11 
We reiterate that the petitioner has not submitted a certified LCA for an occupational classification that 
corresponds to the petition, if the proffered position is in fact a software developer position. 
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an occupation that requires highly specialized knowledge and a prospective employee who has 
attained the credentialing indicating possession of that knowledge."' 
We agree with the aforementioned proposition that "[t]he knowledge and not the title of the degree 
is what is important." In general, provided the specialties are closely related, e.g., chemistry and 
biochemistry, a minimum of a bachelor's or higher degree in more than one specialty is recognized 
as satisfying the "degree in the specific specialty (or its equivalent) " requirement of section 
214(i)(1)(B) of the Act. In such a case, the required "body of highly specialized knowledge" would 
essentially be the same. Since there must be a close correlation between the required "body of 
highly specialized knowledge" and the position, however, a minimum entry requirement of a degree 
in two disparate fields, such as philosophy and engineering, for example, would not meet the 
statutory requirement that the degree be "in the specific specialty (or its equivalent )," unless the 
petitioner establishes how each field is directly related to the duties and responsibilities of the 
particular position such that the required body of highly specialized knowledge is essentially an 
amalgamation of these different specialties. Section 214(i)(1)(B) of the Act (emphasis 
added). However, upon review of the totality of the record, the petitioner here has not met its 
burden and establish that the particular position offered in this matter requires a bachelor's or higher 
degree in a specific specialty, or its equivalent, directly related to its duties in order to perform those 
duties. The documentation provided is inconsistent and undermines the credibility of the petition. 
In any event, the petitioner has furnished insufficient evidence to establish that the facts of the 
instant petition are analogous to those in Residential Fin. Corp. v. U.S. Citizenship & Immigration 
Services.12 We also note that, in contrast to the broad precedential authority of the case law of a 
United States circuit court, we are not bound to follow the published decision of a United States 
district court in matters arising even within the same district. See Matter of K-S-, 20 I&N Dec. 715 
(BIA 19 93). Although the reasoning underlying a district judge's decision will be given due 
consideration when it is properly before this office, the analysis does not have to be followed as a 
matter of law. I d. at 719. 
The petitioner also asserts that the beneficiary's academic curricula cannot be ignored in this matter. 
In that regard we acknowledge the beneficiary's Bachelor of Science degree and note that his 
transcript includes a number of completed information technology course s. However, users 
cannot determine if a particular job is a specialty occupation based on the qualifications of the 
beneficiary. A beneficiary's credentials to perform a particular job are relevant only when the job is 
first found to qualify as a specialty occupation. users is required instead to follow long-standing 
legal standards and determine first, whether the proffered position qualifies as a specialty 
12 
It is noted that the district judge's decision in that case appears to have been based largely on the many 
factual errors made by the service center in its decision denying the petition. We further note that the service 
center director's decision was not appealed to this office. Based on the district court's findings and 
description of the record, if that matter had first been appealed through the available administrative process, 
we may very well have remanded the matter to the service center for a new decision for many of the same 
reasons articulated by the district court if these errors could not have been remedied by our de novo review of 
the matter. 
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occupation, and second, whether an alien beneficiary was qualified for the position at the time the 
nonimmigrant visa petition was filed. Cf Matter of Michael Hertz Assoc., 19 I&N Dec. 558, 560 
(Comm'r 19 88) ("The facts of a benefic iary's background only come at issue after it is found that the 
position in which the petitioner intends to employ him falls within [a specialty occupation] ."). 
Finally, in promulgating the H-1B regulations, the former INS made clear that the definition of the 
term "specialty occupation" could not be expanded "to include those occupations which did not 
require a bachelor's degree in the specific specialty." 56 Fed. Reg. 61111, 61112 (Dec. 2, 1991). 
More specifically, in responding to comments that "the definition of specialty occupation was too 
severe and would exclude certain occupations from classification as specialty occupations," the 
former INS stated that "[t]he definition of specialty occupation contained in the statute contains this 
requirement [for a bachelor's degree in the specific specialty or its equivalent]" and, therefore, "may 
not be amended in the final rule." Id. 
C. The Proffered Position 
To ascertain the intent of a petitioner, USCIS must look to the Form I-129 and the documents filed 
in support of the petition. It is only in this manner that the agency can determine the exact position 
offered, the location of employment, the proffered wage, et cetera. Pursuant to 8 C.F.R. 
§ 214.2(h)(9)(i), the Director has the responsibility to consider all of the evidence submitted by a 
petitioner and such other evidence that he or she may independently require to assist his or her 
adjudication. Further, the regulation at 8 C.F.R . § 214.2(h)(4)(iv) provides that "[a]n H-lB petition 
involving a specialty occupation shall be accompanied by [ d]ocumentation .. . or any other required 
evidence sufficient to establish ... that the services the beneficiary is to perform are in a specialty 
occupation." 
Thus, a crucial aspect of this matter is whether the petitioner has adequately described the duties of 
the proffered position, such that USCIS may discern the nature of the position and whether the 
position indeed requires the theoretical and practical application of a body of highly specialized 
knowledge, and the attainment of a baccalaureate or higher degree in the specific specialty as the 
minimum for entry into the occupation, as required by the Act. The petitioner has not done so here. 
In the instant case, the duties of the proffered position, as described by the petitioner in support of 
the Form I-129 petition and in response to the Director's RFE, do not include duties that 
demonstrate the individual performing the duties must have a bachelor's degree in a specific 
discipline, in order to perform them. For example, the petitioner indicates that the beneficiary will 
"[i]mprove systems by studying current practices and designing modification s," but does not 
describe the beneficiary's day-to-day tasks in performing this function. Similarly, the petitioner 
notes that the beneficiary will "[ d]etermine operational objectives by studying business functions, 
gathering information, evaluating output requirements and formats," as well as "[ d]esign computer 
programs." However, the petitioner does not provide sufficient insight into the actual work the 
beneficiary will be expected to perform, especially in relation to the petitioner's other information 
technology employees, to substantiate the petitioner's assertions regarding the education required to 
perform the duties. Based on the inconsistenc ies in the record with respect to the work that the 
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benefici ary will perform, it is not possible to ascertain whether the beneficiary will provide basic 
technical assistance or will be expected to perform duties at a much higher level. For example, the 
petitioner claims on the LCA that the beneficiary will be performing the duties of "Computer 
Support Specialists," yet claims elsewhere that the beneficiary will be performing such duties as 
"Object oriented programming and design" and "web programming, " duties that are manifestly not 
the work performed by computer support specialists. See U.S. Dep't of Labor, Bureau of Labor 
Statistics, Occupa tional Outlook Handbook, 2014 -20 15 ed., "Computer Support Specialists," 
http://www .bls.gov/ooh/computer-and- information-technolo gy/computer-support­
specialists.htm#tab-1 (last visited May 8, 20 15). 
Upon review of the duties by the petitioner, and the totality of the record, it is not evident that the 
proposed duties, and the position that they comprise, merit recognition of the proffered position as 
qualifying as a specialty occupation. That is, to the extent that they are described, the proposed 
duties do not provide a sufficient factual basis for conveying the substantive matters that would engage 
the beneficiary in the performance of the proffered position for the entire period requested. The job 
descriptions do not persuasively support the claim that the position's day-to-day job responsibilities and 
duties would require the theoretical and practical application of a particular educational level of highly 
specialized knowledge in a specific specialty directly related to those duties and responsibilities. The 
overall responsibilities for the proffered position which contain generalized functions lack sufficient 
information regarding the particular work, and associated educational requirements, into which the 
duties would manifest themselves in their day-to-day performance within the petitioner's operations. 
The petitioner has not demonstrated how the performance of the duties of the proffered position, as 
described by the petitioner, would require the attainment of a bachelor's or higher degree in a 
specific specialty, or its equivalent. 
Based upon a complete review of the record of proceeding, we find that the petitioner has not 
established (1) the actual work that the beneficiary would perform, (2) the complexity, uniqueness 
and/or specialization of the tasks, and/or (3) the correlation between that work and a need for a 
particular level education of highly specialized knowledge in a specific specialty. Consequently, 
these material omissions preclude a determination that the petitioner's proffered position qualifies as 
a specialty occupation under the pertinent statutory and regulatory provisions. There is a lack of 
probative evidence substantiating the petitioner's claims with regard to the duties, responsibilities 
and requirements of the proffered position. 
The petitioner's failure to establish the substantive nature of the work to be performed by the 
beneficiary precludes a finding that the proffered position satisfies any criterion at 8 C.P.R. 
§ 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that determines (1) the normal 
minimum educational requirement for the particular position, which is the focus of criterion 1; 
(2) industry positions which are parallel to the proffered position and thus appropriate for review for a 
common degree requirement, under the first alternate prong of criterion 2; (3) the level of complexity 
or uniqueness of the proffered position, which is the focus of the second alternate prong of criterion 2; 
(4) the factual justification for a petitioner normally requiring a degree or its equivalent, when that is an 
issue under criterion 3; and (5) the degree of specialization and complexity of the specific duties, which 
is the focus of criterion 4. 
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The material deficiencies in the record preclude approval of the petition. The petitioner has not 
established that the position proffered here is a specialty occupation. 
V. CONCLUSION 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by us even if the service center does not identify all of the grounds for denial in the initial 
decision. See Spencer Enterprise s) Inc. v. United States, 229 F. Supp. 2d 1025 , 1043 (E .D. Cal. 
200 1), aff'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOl, 381 F.3d 145 (noting that the 
AAO conducts appellate review on a de novo basis). 
Moreover, when we deny a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it shows that we abused our discretion with respect to all of the enumerated 
grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1037, aff'd. 345 F.3d 
683; see also BDPCS, Inc. v. Fed. Communica tions Comm 'n, 35 1 F.3d 1177, 1183 (D.C. Cir. 2003) 
("When an agency offers multiple grounds for a decision, we will affirm the agency so long as any 
one of the grounds is valid, unless it is demonstrated that the agency would not have acted on that 
basis if the alternative grounds were unavailable ."). 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. In visa petition proceedings, it 
is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S .C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 20 13). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. The petition is denied.